Foster & Ors v Meller & Anor (No 2) - [2008] VSC 447

Wher

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. Prob 55 of 2007

RAYMOND GIBSON FOSTER	Plaintiffs
RICKY BORDE
ANTHONY JOSEPH ZUCCO
v
DAVID MELLER	Defendants
PETER ARNOLD SHATTOCK

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JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2008
DATE OF JUDGMENT:	21 October 2008
CASE MAY BE CITED AS:	Foster & ors v Meller & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 447

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PROBATE – Costs – Suspicious circumstances – Testator’s conduct cause of litigation – Beneficiaries involved in procuring the Will – Unsuccessful party’s costs paid out of residuary estate

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Wells	Davis Zucco Lawyers
For the Defendants	Mr RT Waddell	Harry M Hearn Solicitors

HIS HONOUR:

On 10 September 2008 I delivered judgment in this proceeding and propose to make an order granting probate of the will of Maria Henrietta Meller made 27 February 2004. The parties have been unable to resolve the question of costs and thus it remains for the court to do so.

The defendants submit that their costs on a solicitor and client basis should be paid out of the residuary estate. The plaintiffs submit that the defendants should only be allowed their costs out of the estate, on a party/party basis, up to and including 28 March 2007, or calculated to a time shortly thereafter with no other order for costs. The plaintiffs support this submission on the basis that the real issue between the parties from that date was the question of Mrs Meller’s testamentary capacity.

The plaintiffs submit that upon receipt by the defendants of the second affidavit of Mr Zucco sworn 28 March 2007, the defendants ought to have accepted that there could be no genuine dispute about the knowledge and approval of the will at the time of execution. Mr Zucco’s affidavit was prepared and served together with affidavits of Ms Mastromanno and Ms Marchio and a second affidavit of Dr Szental.

The plaintiffs also submit that an order for payment out of the estate of costs incurred by the defendants should not include costs in connection with the evidence or assistance provided by Dr Sutcliffe; and that some further general reduction should be made for prosecuting the ground of undue influence which was abandoned on the second day of the trial. They submit that the appropriate order for costs is that the plaintiffs pay out of the estate of the deceased 80% of the defendants’ costs of and incidental to this proceeding up to and including 28 March 2007 (or such other date as the court may deem appropriate), but excluding all costs relating to the evidence of Dr Sutcliffe.

While the prima facie rule is that costs follow the event there are a number of recognised exceptions in probate cases. In Mitchell v Gard[1], a case where the will was upheld and admitted to probate, Sir JP Wilde held on a motion for costs, that,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 447
Decision Date: 21 October 2008

CaseChat Overview and Summary

In the matter of Foster and others versus Meller and another, the court was tasked with adjudicating over a dispute involving the administration of a deceased's estate. The dispute centred around the validity of a will and the distribution of assets. This case was heard in the Supreme Court of New South Wales, where the issues of probate and the allocation of costs were pivotal.

The legal issues that the court had to address included whether suspicious circumstances surrounding the creation of the will warranted an investigation into its validity, and whether the beneficiaries who were involved in procuring the will should bear the costs of the litigation. The court also needed to determine whether the costs incurred by the unsuccessful party should be paid out of the residuary estate.

The court examined the evidence and concluded that there were indeed suspicious circumstances regarding the testator's conduct, which led to the initiation of the litigation. However, it was determined that the beneficiaries who were involved in the procurement of the will were not liable for the costs of the litigation. The court ruled that the costs should be paid out of the residuary estate, given that the testator's conduct was the primary cause of the dispute.

As a result, the court ordered that the costs of the litigation were to be borne by the residuary estate, rather than the beneficiaries who were involved in procuring the will. This decision was based on the principle that the testator's actions were the catalyst for the litigation, and therefore, the estate should bear the financial burden. The court's ruling provided clarity on the allocation of costs in probate matters where suspicious circumstances are present.

Orders